§662-15  Exceptions.  This chapter shall
not apply to:



(1)  Any claim based upon an act or omission of an
employee of the State, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation is valid, or based upon
the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a state officer or employee,
whether or not the discretion involved has been abused;



(2)  Any claim arising in respect of the assessment or
collection of any tax, or the detention of any goods or merchandise by law
enforcement officers;



(3)  Any claim for which a remedy is provided
elsewhere in the laws of the State;



(4)  Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights;



(5)  Any claim arising out of the combatant activities
of the Hawaii national guard and Hawaii state defense force during time of war,
or during the times the Hawaii national guard is engaged in federal service
pursuant to section 316, 502, 503, 504, 505, or 709 of Title 32 of the United
States Code;



(6)  Any claim arising in a foreign country; or



(7)  Any claim arising out of the acts or omissions of
any boating enforcement officer. [L 1957, c 312, pt of §1; Supp, §245A-15; HRS
§662-15; am L 1972, c 164, §2(e); am L 1979, c 195, §2; am L 1986, c 173, §1;
am L 1987, c 192, §1; am L 1988, c 135, §1; am L 1991, c 272, §15; am L 1998, c
213, §2; am L 1999, c 115, §§4, 11; am L 2004, c 10, §10]



 



Cross References



 



  Claim against the ferry system, see §§268-11 to 15.



 



Law Journals and Reviews



 



  State v. Rogers:  The Limits of State Tort Liability.  8 HBJ
89.



 



Case Notes



 



  Section was not applied retroactively.  832 F.2d 1116.



  To the extent that the plaintiffs predicated their negligence
and negligent infliction of emotional distress claims upon the department of
education's (DOE) negligent retention and supervision of teacher, paragraph (4)
did not insulate the DOE from liability; given that plaintiffs had alleged that
the DOE reasonably should have anticipated that teacher would molest the girl
students, their negligent retention and supervision claims did not "arise
out" of teacher's acts of molestation.  100 H. 34, 58 P.3d 545.



  Where a plaintiff's negligence claim against the State seeks
to hold the State vicariously liable for a state employee's assault, battery,
false imprisonment, etc. under the doctrine of respondeat superior, the State
is, pursuant to paragraph (4), immune from the plaintiff's claims.  100 H. 34,
58 P.3d 545.



  As §40-35 applied to plaintiff's ocean recreation management
area permit fee dispute, all of plaintiff's tort claims were barred under
paragraph (3), which unambiguously provides that chapter 662 is inapplicable to
"any claim for which a remedy is provided elsewhere in the laws of the
State"; trial court thus did not err in determining that paragraph (3)
barred all of plaintiff's tort claims.  113 H. 184, 150 P.3d 833.



  Assuming defendants' claims for "unreasonable failure to
consent" and "negligent claims handling" fell within the
interference with contract rights exception of paragraph (4),  it could not be
said that the State improperly interfered with the alleged settlement agreement
because, pursuant to §386-8, the State was a necessary party to such
agreement.  114 H. 202, 159 P.3d 814.



  Discussed.  51 H. 150, 454 P.2d 112.



 



Discretionary function exception.



  Distinction between governmental activity and private
activity is not valid basis for determining liability.  51 H. 293, 459 P.2d
378.



  Acts done on operational level are not within exception.  51
H. 293, 459 P.2d 378; 52 H. 156, 472 P.2d 509.



  Immunities retained in paragraphs (1) and (4) are not
applicable to the city and county prosecuting attorney or to the city and
county of Honolulu.  56 H. 241, 534 P.2d 489.



  Discretionary function exception discussed re highway
design.  57 H. 656, 562 P.2d 436.



  State has not waived its immunity in defamation actions.  1
H. App. 517, 620 P.2d 771.



  Claim for negligent and/or intentional infliction of
emotional distress against Hawaii civil rights commission not barred under
paragraph (1), as acts of investigating complaint, instituting suit based on
finding of reasonable cause, and sending demand letter were part of routine
operations of commission and did not involve broad policy considerations
encompassed within the discretionary function exception.  88 H. 85, 962 P.2d
344.



  The discretionary function exception in paragraph (1) is
limited to situations in which a government agent is engaged in the
effectuation of  "broad public policy"; the investigation of a
complaint by the Hawaii civil rights commission, in and of itself, does not
involve such considerations; thus, a counterclaim for negligence in the
performance of an investigation is not barred by sovereign immunity.  88 H. 85,
962 P.2d 344.



  Decision not to improve guardrail, at time of highway
resurfacing project, constituted an operational level decision that did not
fall within the discretionary function exception of paragraph (1).  91 H. 60,
979 P.2d 1086.



  Where Hawaii employer-union health benefits trust fund
trustees' decision to adopt a two-tier rate structure for health benefit plans
was not a routine, everyday matter, but involved the evaluation of broad policy
factors, it fell within the discretionary function exception of paragraph (1). 
115 H. 126, 165 P.3d 1027.



 



Hawaii Legal Reporter Citations



 



  Constitutional violations.  77-1 HLR 77-267.